JOINT DISSENTING OPINION OF JUDGES VILLIGER AND YUDKIVSKA

To our regret, we do not share the majority ’ s view that the applicants ’ deportation to the Russian Federation would be in violation of Article 3 of the Convention, for the following reasons.

First of all, it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3. Once such evidence has been adduced, it is for the Government to dispel any doubts about it (see NA. v. the United Kingdom , no. 25904/07, § 111, 17 July 2008). Furthermore, if information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among many other authorities, R.C. v. Sweden , no. 41827/07 , 9 March 2010 ).

Like the majority, we agree with the domestic authorities that in the present case “the applicants failed to make it plausible that they would face a real risk of ill-treatment upon return to the Russian Federation because of the first applicant ’ s alleged journalistic activities” (see paragraph 65 of the judgment). In fact, they presented a story which gave rise to serious doubts about its credibility. Whilst they were given numerous opportunities – both by the domestic authorities and by this Court – to substantiate their claims and to explain the inconsistencies in their submissions, they failed to do so, providing instead “strikingly brief” and vague information in respect of both the first applicant ’ s alleged journalistic activities and the alleged ill ‑ treatment.

In our view, it cannot be said that “in the present case the national authorities did not as such question that the first applicant had been subjected to torture” (see paragraph 61). The Migration Court merely “found that the first applicant ’ s injuries had probably been caused by ill ‑ treatment resembling torture” (see paragraph 16). Further, it “did not consider that the first applicant had made probable why he had been subjected to abuse and by whom”. Thus, in the absence of any clear and consistent information from the applicants, the domestic authorities conducted a thorough assessment of their submissions and came to the conclusion that these submissions were unfounded. We see no reason to reproach them for a failure “to make assessment of this specific risk in the applicants ’ case, notably that the first applicant has significant and visible scars on his body” (see paragraph 67) – it is precisely because their story as a whole, including the alleged ill-treatment, lacked credibility that the authorities concluded that there had been no real risk for the applicants in the event of deportation.

Furthermore, the applicants did not themselves claim that they ran a risk of ill-treatment as a result of the first applicant ’ s bodily injuries; they connected this potential risk to the first applicant ’ s alleged journalistic activity, a claim already found to be unsupported by any evidence. We find it a bit odd that the majority, whilst doubting – like the domestic authorities – the credibility of the applicants ’ story, nevertheless concluded that the Russian local authorities would be able to “see scars [that had] occurred in recent years which would indicate that he took [an] active part in the second war in Chechnya ”.

We fail to see how these bodily injuries – a burned cross and scars on the first applicant ’ s body – could immediately indicate his “active” participation in the Second Chechen War. These injuries in themselves, unlike, for instance, gunshot wounds or other battle injuries, have no obvious and incontestable connection to military operations. Moreover, it is unclear how these injuries, which appeared in 2007 and were confirmed by medical examination in 2008, can still have the same implication six years later.

We consider that this conclusion, namely that any bodily injuries on a person who originates from Chechnya, regardless of uncertainty about the circumstances under which they were sustained, automatically indicate that he or she played an “active part” in the Second Chechen War and thus rule out expulsion, is too far-reaching.

Finally, the majority did not attach sufficient importance to the fact that the case concerns expulsion to a High Contracting Party to the Convention, which has undertaken to secure the fundamental rights guaranteed by it (see, as a recent authority with respect to Chechnya, Bajsultanov v. Austria , no. 54131/10 , § 70, 12 June 2012 ).

In sum, we consider that in the present case there are no substantial grounds to believe that the applicants would be at risk of being subjected to treatment contrary to Article 3 of the Convention and we cannot depart from the conclusions reached by the Swedish authorities in this respect.